tag:blogger.com,1999:blog-18722606.post7584371273635124253..comments2012-09-15T22:43:33.675+00:00Comments on Coral Bones: Chagos petitionCaspar Hendersonnoreply@blogger.comBlogger1125tag:blogger.com,1999:blog-18722606.post-34564126666601807452007-11-01T15:48:00.000+00:002007-11-01T15:48:00.000+00:00Letter from Ian Orr and Chagossian solidarity grou...<I>Letter from Ian Orr and Chagossian solidarity group</I>"<BR/><BR/>If the FCO decides to go to appeal, does it realise that one of the most eloquent witnesses in defence of the rights and liberties of the Chagossians will be the Prime Minister? <BR/><BR/>A letter that should be in a national daily on 2 November, with all-party Parliamentary signatories, follows the extracts. Others could send similar letters to the Prime Minister or to David Miliband at the Foreign & Commonwealth Office. Why not add a passage from On Liberty to encourage the government to live up to the Prime Minister’s ideals? He and the Appeal Court seem to agree on much, including their unwillingness to endorse the past treatment of the Chagossians by the FCO. Is the FCO listening to the PM? <BR/><BR/>The letter is mildly worded. The Chagossians have been much abused by Labour governments, especially those led by Harold Wilson and Tony Blair; but no new abuse has yet been heaped on them under Gordon Brown’s leadership. He will have David Miliband to thank if the Chagossians find that at heart he is another colonialist bully, however much he quotes from J S Mill’s On Liberty. <BR/><BR/>Please sign the petition on the No 10 website: http://petitions.pm.gov.uk/chagosappeal/ <BR/><BR/>The following grouped extracts from On Liberty (Gordon Brown 25 October 2007) and On Chagos (Court of Appeal 23 May 2007).<BR/><BR/>**************************************************************************<BR/><BR/>A passion for liberty has determined the decisive political debates of our history, inspired many of our defining political moments, and those debates, conducted in the crucible of great events, have, in my view, forged over time a distinctly British interpretation of liberty ------ one that asserts the importance of freedom from prejudice, of rights to privacy, and of limits to the scope of arbitrary state power.<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/>Notwithstanding the great latitude which the prerogative power of colonial governance enjoys, I consider the material Orders to have been unlawfully made, because both their content and the circumstances of their enactment constitute an abuse of power on the part of executive government.<BR/><BR/> Lord Justice Sedley in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007<BR/><BR/>__________________________________________________________________________<BR/><BR/>…we can start immediately to make changes in our constitution and laws to safeguard and extend the liberties of our citizens: …respecting the need for freedom from arbitrary treatment, new provision for independent judicial scrutiny and open parliamentary oversight.<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/>… Lord Diplock said in the CCSU case that, where the prerogative is the source of the decision-making power, in constitutional practice the power is generally exercised by those holding ministerial rank. <BR/><BR/> That was precisely what happened on the facts of this case. As Waller LJ puts it at [92] above, it was the executive not the Crown that decided to put the 2004 Orders in place. It did so without consulting the Chagossians or anyone on their behalf and without even informing, let alone seeking the advice of, Parliament. …It seems to me that if, as the House of Lords held was the position in the CCSU case, the exercise of the prerogative in that case was in principle susceptible to judicial review, so should the Orders in Council in the instant case.<BR/><BR/> Sir Anthony Clarke, Master of the Rolls in Appeal Court Approved Judgement<BR/><BR/>EWCA Civ 498 23 May 2007<BR/><BR/>__________________________________________________________________________ <BR/><BR/>…too often in recent years the public dialogue in our country has undervalued the importance of liberty<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/> If the executive instead of acting under a statutory power acts under a prerogative power and in particular a prerogative power delegated to the respondent under article 4 of the Order in Council of 1982, so as to affect the rights of the citizen, I am unable to see, subject to what I shall say later, that there is any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of the power statutory. In either case the act in question is the act of the executive. To talk of that act as the act of the sovereign savours of the archaism of past centuries.<BR/><BR/> Lord Justice Waller in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007 <BR/><BR/> The Foreign Minister made a statement holding out to a certain body of people, the Ilois, that they would be allowed to return to the Outer Islands. No justification or reason has been provided as to why that promise should now be withdrawn.<BR/><BR/> Lord Justice Waller in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007<BR/><BR/>________________________________________________________________________ <BR/><BR/>The abolition of slavery was an act that led the world in the defence of human dignity - and today our abhorrence of torture is and must be unequivocal.<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/>we should neither glorify nor distort what has gone before - and the struggles, both the ups and downs, of empire are not long behind us<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/>The Government has not defended what was done or said thirty years ago.<BR/><BR/> Robin Cook 3 November 2000, quoted by Lord Justice Sedley in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007 <BR/><BR/>Furthermore, we will put in place a new Immigration Ordinance which will allow the Ilois to return to the outer islands while observing our Treaty obligations.<BR/><BR/> Robin Cook 3 November 2000, quoted in <BR/><BR/>…this is a case in which a lawful promise has induced a legitimate expectation of a substantive benefit and to frustrate the expectation “is so unfair that to take a new and different course will amount to an abuse of power”. <BR/><BR/> Sir Anthony Clarke, Master of the Rolls in Appeal Court Approved Judgement<BR/><BR/>EWCA Civ 498 23 May 2007<BR/><BR/>___________________________________________________________________ <BR/><BR/> Britain led the way in the battle for freedom from hierarchical rule, for human rights and for the rule of law.<BR/><BR/>And tracing Coke's defence of common law, the work of John Locke and the Bill of Rights of 1689 right through to the first of the Reform Acts, Macaulay concluded that 'the authority of law and the security of property were found to be compatible with a liberty of discussion and of individual action never before known'.<BR/><BR/>And in the mid to late 20th century, this idea of liberty increasingly became the foundation of a new international order where the right of everyone - human rights - should be respected by everyone. On an island off Newfoundland in 1941, Churchill and Roosevelt together drew up the Atlantic Charter, and by beginning the system of international law based on the fundamental rights of all human beings, Britain led the way in asserting the inviolability of individual rights, irrespective of race or nationality and made the freedoms so dear to Britain the cornerstone of a new international order. And a few years later Britain led the way in the European Convention of Human Rights so that the same insistence on tolerance, the same defence against the arbitrary power of governments, the same fundamental rights and implicit mutual obligations between all human beings could provide protection to all individuals wherever they were.<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/> The only acceptable answer, in my judgment, is that an Order in Council is an act of the executive and as such is amenable to any appropriate form of judicial review, whether anticipatory or retrospective. What determines the constitutional status of a measure – a statute, a judgment or an order - is not its formal authority, which is always that of the Crown, but its source in the interlocking but unequal limbs of the state. One aspect of this structure, determined by the historic compromise reached in the course of the 17th century, is that both the courts and the executive will treat the authority of Parliament, duly exercised, as absolute.<BR/><BR/> Lord Justice Sedley in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007<BR/><BR/>_____________________________________________________________________ <BR/><BR/>So I recall a British story of liberty rooted in tolerance, the liberty that is necessary to uphold the dignity of each and all; reinforced by due process against the exercise of arbitrary power; best advanced in the modern world when we recognise the responsibilities we owe to each other;<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/>… the 2004 Orders were an abuse of power because they did not have proper regard for the interests of the Chagossians.<BR/><BR/> Sir Anthony Clarke, Master of the Rolls in Appeal Court Approved Judgement<BR/><BR/>EWCA Civ 498 23 May 2007 <BR/><BR/> In my judgment, applying the test set out in Coughlan, to frustrate the expectation which the Chagossians from November 2000 legitimately entertained of being at liberty one day to return to their homeland was so profoundly unfair, in the absence of relevant and overriding policy imperatives, as to be an abuse of power.<BR/><BR/> Lord Justice Waller in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007<BR/><BR/>___________________________________________________________________________ <BR/><BR/> it is clear that to protect individual liberty we should have the freest possible flow of information between government and the people.<BR/><BR/> In the last ten years in Britain we have created a new legislative framework requiring openness and transparency in the state's relationships with the public. The Freedom of Information Act has been a landmark piece of legislation, enshrining for the first time in our laws the public's right to access information.<BR/><BR/> Freedom of Information (FoI) can be inconvenient, at times frustrating and indeed embarrassing for governments. But Freedom of Information is the right course because government belongs to the people, not the politicians.<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/>As Lord Justice Laws recognised, we made no attempt to conceal the gravity of what happened. I am pleased that he has commended the wholly admirable conduct in disclosing material to the Court and praised the openness of today’s Foreign Office.<BR/><BR/> Robin Cook 3 November 2000, quoted by Lord Justice Sedley in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007 <BR/>___________________________________________________________________________ <BR/><BR/>The advancement of individual liberty depends upon the protection from arbitrary interference of the person and private property and, above all, the home.<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/> Although I can imagine circumstances in which it would be possible for the executive rationally to conclude that the freedom to return to a person’s home territory should be removed, I agree with Sedley LJ that this is not such a case.<BR/><BR/> Sir Anthony Clarke, Master of the Rolls in Appeal Court Approved Judgement<BR/><BR/>EWCA Civ 498 23 May 2007<BR/><BR/>___________________________________________________________________________ <BR/><BR/> we should consider whether we need to do more to offer redress for the individual against any disproportionate use of powers by the state.<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/>In November 2000, a Divisional Court (Laws LJ and Gibbs J, [2001] QB 1067, DC) quashed the 1971 Ordinance on the ground that the exclusion of an entire population from its homeland lay outside the purposes of the parent Order in Council, the British Indian Ocean Territory Order 1965, which were limited to the governance of the population and did not encompass its expulsion. It is relevant to the present proceedings that it was the subsidiary Ordinance and not the empowering Order in Council which was quashed.<BR/><BR/> Lord Justice Sedley in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007 <BR/><BR/> .the particular facts of this case…gave rise to a legitimate expectation on the part of those represented by the respondent, for which the courts of this country in the modern era have to provide a remedy.<BR/><BR/> Lord Justice Waller in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007 <BR/> <BR/><BR/>I believe that trust in our institutions can only be strengthened if our constitutional reforms are explicitly founded on British ideas of liberty -- and that it is imperative that in every generation we re-examine areas where the executive has discretion and where to limit that discretion would be in the interests of good government.<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/>S.4 of the Ordinance effectively exiles the Ilois from the territory where they are belongers and forbids their return. But the “peace, order, and good government” of any territory means nothing, surely, save by reference to the territory’s population. They are to be governed: not removed. …..The people may be taxed; they should be housed; laws will criminalise some of the things they do; maybe they will be tried with no juries, and subject to severe, even brutal penalties; the laws made for their marriages, their property, and much besides may be far different from what obtains in England. All this is vouchsafed by the authorities. But that is not all the learning gives. These people are subjects of the Crown, in right of their British nationality as belongers in the Chagos Archipelago. As Chitty said in 1820, the Queen has an interest in all her subjects, who rightly look to the Crown - today, to the rule of law which is given in the Queen’s name - for the security of their homeland within the Queen’s dominions.<BR/><BR/> Lord Justice Laws, November 2000, quoted by Lord Justice Sedley in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007<BR/><BR/>___________________________________________________________________________ <BR/><BR/>The challenge for each generation is to conduct an open debate without ever losing sight of the value of our liberties.<BR/><BR/>Indeed the character of our country will be defined by how we write the next chapter of British liberty - by whether we do so responsibly and in a way that respects and builds on our traditions, and progressively adds to and enlarges rather then reduces the sphere of freedom.<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/> I am disinclined to get into the argument as to the extent of the prerogative because I confess to feeling that the power originally was likely to be very wide indeed insofar as it related to a “conquered or ceded colony” but, more importantly, because however wide that power the duty of the court is to examine what happened in this case through modern eyes and have regard to reality in the present age.<BR/><BR/> Lord Justice Waller in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007 <BR/><BR/> To speak today of the acts of the sovereign as “irresistible and absolute” when modern constitutional convention requires that all such acts are done by the sovereign on the advice of and will be carried out by the sovereign’s ministers currently in power is surely to hamper the continual development of our administrative law by harking back to what Lord Atkin once called, albeit in a different context, the clanking of mediaeval chains of the ghosts of the past<BR/><BR/> Lord Justice Waller in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007<BR/><BR/>___________________________________________________________________________ <BR/><BR/>And as we make these decisions, we must never forget that the state and the people are not equivalent. The state is always the servant of the people.<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/> This case, correspondingly, concerns not a sovereign act of the Crown but a potentially justiciable act of executive government. Were we to hold otherwise we would be creating an area of ministerial action free both of Parliamentary control and of judicial oversight, defined moreover not by subject-matter but simply by the mode of enactment. The implications of such a situation for both democracy and the rule of law do not need to be spelt out.<BR/><BR/> Lord Justice Sedley in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007<BR/><BR/>___________________________________________________________________________ <BR/> <BR/>We must remember that liberty belongs to the people and not governments.<BR/><BR/>It is the challenge and the opportunity for our generation to write the next chapter of British liberty in a way that honours the progress of the past - and promises a wider and more secure freedom to our children.<BR/><BR/> Gordon Brown speech On Liberty at University of Westminster 25 October 2007 <BR/><BR/> The point is that the two Orders in Council negate one of the most fundamental liberties known to human beings, the freedom to return to one’s homeland, however poor and barren the conditions of life, and contingent though return may be on the property rights of others; and that they do this for reasons unconnected with the wellbeing of the people affected.<BR/><BR/> Lord Justice Sedley in Appeal Court Approved Judgement EWCA Civ 498 23 May 2007 <BR/> <BR/> <BR/><BR/>We urge the Prime Minister to follow his speech On Liberty (25 October) by accepting the right of the Chagossians to return to their islands. The Foreign and Commonwealth Office has lost three times in the courts on this issue. The Law Lords have now given a deadline of 6 November and told the FCO that it would have to meet all the costs of a further appeal, whatever the outcome. After losing in the High Court in 2000, the FCO accepted the Chagossians right to return. Then in 2004 it used two Orders in Council to remove that right. The unanimous judgement of the Appeal Court on 23 May was that this was illegal: “the two Orders in Council negate one of the most fundamental liberties known to human beings, the freedom to return to one’s homeland”.<BR/><BR/><BR/>For the FCO to proceed with a further appeal would waste more public funds, delay justice for the Chagossians and expose the Prime Ministers’ words as hollow. Can we please have a return to good sense, justice and British liberties?Caspar Hendersonhttps://www.blogger.com/profile/04667141284390082748noreply@blogger.com